IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CASE NO.: F.A.O. 1675 of 2007
DATE OF DECISION : July 9,2009
The Dashmesh Co-operative Labour & Construction Society Ltd.
.......Appellant
versus
Punjab Mandi Board and another
......Respondent
CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR
PRESENT: Mr. Vishal Gupta, Advocate
for the appellant.
Ms. Puneeta Sethi, Advocate
for respondents No.1 & 2.
NIRMALJIT KAUR, J.
The appellant-Society has filed the petition for setting aside the
order dated 23-12-2006 passed by the District Judge, Ropar, dismissing
the application under Section 34 of the Indian Arbitration and
Reconciliation Act, 1966.
The appellant-Society, being the lowest tenderer, was allotted
the work for construction of cause way in between R.D. No.4400 to 4550
on link road from Nurpur Khurd to Kartarpur, Hayatpur, M.C. Anandpur
Sahib, approximately costing Rs.2,56,000/- and construction of cause way
in between RD No.3770 to 7900 under the S/R to L/R from Village Tibba
Nangal to Kathakgarh, Baman Majra, Jatwar Road, M.C. Anandpur Sahib,
approximately costing Rs.5,62,000/-. The Arbitrator, vide award dated
16-07-1999, disallowed the claim of the appellant-Society. The District
Judge, Ropar, vide judgment dated 23-12-2006, dismissed the objections
F.A.O. 1675 of 2007 -2-
filed by the appellant-Society on the ground that the appellant-Society had
not used the boulders of approved quarry. Mr. Vishal Gupta, learned
counsel for the appellant submitted that the District Judge as well as the
Arbitrator has lost sight of the fact that the appellant-Society has
constructed the cause way, way back in the year 1990 and the same have
been in very good shape till the present day which shows that the good
quality of boulder had been used by the appellant-Society. In the present
case, the stones as used by the appellant-Society, were duly approved by
the Superintending Engineer, as well as, the Junior Engineer working at the
site and they found that the cause way constructed is proper and as per
specification and there is no defect in the same.
Secondly, the said opinion that the boulder was not as per the
proper specification and was not of good quality, is not based on any
expert opinion and the Chief Engineer never visited the spot nor has given
any notice of his inspection and has never checked the boulder and other
material at the spot. Thus, simply on the basis of his oral assessment
without any evidence to the contrary, it could not have been presumed that
the boulder has been used from an un-approved quarry.
Learned counsel for the parties have been heard.
The first argument of learned counsel for the appellant has no
merit, in view of the finding recorded by the District Judge, Ropar, which
reads as follows :-
” As per clause 7 of the Schedule attached with
the tender documents containing the description of
items, the boulders to be used by the contractor was
boulder 20 Kg. to 40 Kg. from an approved quarry of
Chandimandir/Panchkula/Devi Nagar/ Surajpur or any
F.A.O. 1675 of 2007 -3-other approved quarry as duly stacked uniformly
distributed along the construction. Learned counsel for
the objector has failed to invite my attention to any such
material/fact available either on the arbitration file or in
the record of this Court that the boulders from Binewas
quarry were approved by the Engineer-in-charge i.e.
XEN who has signed the contract agreement on behalf
of the Board after the acceptance of the tender
submitted by the petitioner Society.”
The second argument is also liable to be rejected in as much
as the Chief Engineer definitely falls within the definition of `expert’ in the
concerned matter for assessing the quality of construction. Even otherwise,
the violation, pointed out herein is with respect to the boulders used from a
quarry which was not an approved quarry, as such, either by the Board or
even by the Executive Engineer.
In view of the above, I find no ground to interfere or set aside
the order dated 23-12-2006 of the District Judge, Ropar, dismissing the
application under Section 34 of the Indian Arbitration and Reconciliation
Act, 1966.
The FAO is, accordingly, dismissed.
(NIRMALJIT KAUR)
JUDGE
July 9, 2009
gurpreet
Whether to be referred to the Reporter : Yes / No